Virginia free press. (Charlestown, Va. [W. Va.]) 1832-1916, 1887-04-07

IN the matter OF etecllng 4. ,. CtiidtoI,
the manner of its acting are bestowed upon
il and regulated by the Constitution If the
Z. 5. which is supreme upon the subject
and no act or provision of Il State Ccnstitu
ton or law can effect or alter them"
Applied, as was manifestly intended, to
the case under consideration, | see no reason
to change or modify the language / then
employed and h is above quoted.
But let us re, to the provision of the
Constitution to which Lawyer thus calls
attention, because upon it he bases an ar
gumert to show that a State has the power
to regulate the time, place and manner of e.
lecting its Senators and that under this pow
err the State of West Virginia has by con-
stituIional provision deprived Itself of the
authority to elect Senator at an extraordi-
nary session of the Legislature called in the
mode By which that of the goth instant 10
to be convened. But in order that | may
not m;sstate his proposition | will quos3
from his article. he says:
ut seems therefore, that the Constitution
of this State (which is its primary Legisla-
ture,) may prescribe the time, place and
manner OF electing its Senators, which reg
uations would control unless and until
Congress altered them, or make Others to
SuperSede those of the State.
Now, Congress passed law in 1866 on
the subject, and we cannot see that II au-
thorizes any election by the EXTRAoRDINA-
RY session; on the contrary the better
opinion seems to be that it does nothing OF
the kind, and this law cannot possibly be
made to apply to any but regular session.
The Constitution Of the State, on the 9TH
er hand, expressly Prohibits the eXtraordi-
nary session from electing a Senator unless
such business is stated in the Governors
proclamation. This is regulation as to
the manner and time of electing q Senator
which the State under the Federal COnsti-
tuition had a right TO make. The law OF
Congress, as we have seen, does not conflict
with this regulation
The principle here cOntended for is that
a State is at liberty Notwithstanding Con-
gress has assumed to regulate the time and
manner of electing U. S. Senator. Still
to legislate upon these subjects and regulate
them unless such regulation interfere with
the Congressional action. And as the Con-
stitution of w. Va. has prohibited an extra
ordinary Legislature from transacting any
business except that mentioned in the Gov
ernor's proclamation that convenes it, and
as he does not name the election of Sena-
tor as one of the purposes of the present
call, therefore the Legislature of w. Va 4,
at its coming session cannot elect U. S.
Senator.
To this proposition | respectfully dissent
In answer to it | say that the rule of con-
struction is well settled that, when power
is given to a State under the Constitution
of the L. :. to do an act which executes
any provision of that instrument, until Con
gress shall assume to exercise such power,
from the moment Congress so interferes, all
power in the Statelupon that subject ceases
and determines. Congress from that time
alone has a experimenting control. (Sto-
rvs Const. section Sl5-S2S.)
Now the act of Congress which regulates
The subject of the election of U. S. Sena
tor was passed in 1866. The Constitution
of the State of West Virginia was adopted
in 1872, sir gears alter the exclusive right
to control the subject Of the election of a
L. :. Senator had been assumed and exer
cised by Congress.
Can it be supposed that it was the inten-
ton of either the trainers of the State Con-
stitution or the people who adopted it to
attempt thus to invade the Federal power
and regulate subject exclusively under its
cognizauce and jurisdiction?
But whether it was intended or not ,cas
any such thing, or could any such thing be
accomplished?
moreover fail to see that there has been
an effort by the trainers of the Constitution
of West Virginia to exclude from the Leg
islature the power in extraordinary session
called by the Governor, to elect a Senator
should a vacancy have occurred On the
contrary the presumptions are all against
ssch theory. The State owes the Federal
certain duties which are defined
and required by the Constitution of the
United States. In this instance it requires
that when vacancy occurs in the office of
L. ,. Senator during the recess of the Leg
such Legislature shall at its next
meeting fill the vacancy. Unless there be
something in the action of the State to show
its purpose to attempt to avoid
such duty it must be assumed thatit was its
to fulfill it.
If therefore, the constitutional provision
Of the State which confines the power of
he Legislature to the transaction Of such
business when it is assembled in extra SEES
lion as may be designated by the Governor
an be so construed as to harmonic it
With its duty to the United States Govern
nent, such construction will be given it.
Vow is there anything inconsistent with
his duty in the constitutional provision of
his State referred to?
The Constitution of State is designed
o regulate the affairs of the State, its inter
ial and domestic matters. When, then, it
ontains provision that when it is called |
n extraordinary session by its Governor it
hall transact orly such business as he may |